Z (No. 3) v University of A

[2001] NSWADT 182

CITATION:	Z (No. 3) -v- University of A [2001] NSWADT 182 revised - 16/04/2002
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Z RESPONDENT University of A
FILE NUMBER:	001001
HEARING DATES:	23/06/2000, 4/08/2000, 8/09/2000, 13/10/2000, 26/02/2001
SUBMISSIONS CLOSED:	03/15/2001
DATE OF DECISION:	11/08/2001
BEFORE:	Goode P - Judicial Member; Clayton S - Member; McDonald O - Member
APPLICATION:	Joinder of parties
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Z v University of A (No. 2) [2001] NSWADT 138 Hughes v Bowral Co-operative Trading Ltd & Ors [1997] NSWEOT 300 Borg v Commissioner Department of Corrective Services [2000] NSWADT 118 Crook v Department of Education and Training (1998) NSWEOT, 12 August 1997 Elmaraazey v University of NSW & Ors [1996] HREOCA 17 Jameson v FAI General Insurance Co Ltd 8 June 2000 Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 Atkins & Ors v Director General of Education (1989) EOC 92-263 Reyes Gonzalez v Sydney Institute of Technology [1998] NSWEOT 4 Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Tredinnick v Wentworth Area Health Service [2000] NSWADT 172) Bogie v The University of Western Sydney (1990) EOC 92-313 Shaikh v Commission, NSW Fire Brigade (1966) EOC 92-808 R v Marinkovic and Marinkovic (1986) EOC 92-841 Western Aboriginal Legal Services Ltd v Jones & Anor (2000) NSWADT 102 Wheeler v Shellharbour Golf Club Limited [1995] NSWEOT 85
REPRESENTATION:	APPLICANT In person RESPONDENT K Grime, solicitor JOINDER PARTIES K Grime, solicitor
ORDERS:	1. The following persons not be joined as respondents to the proceedings: Professor E, C, Professor G, Professor J, Professor H, Professor I; 2. Dr D be joined as a respondent to the proceedings but only in response to the Applicant’s claims of:imputed homosexual discrimination, victimisation, imputed homosexual vilification; 3. That B be joined as a respondent to the proceedings but only in response to the Applicant’s claims of victimisation.

1 The Tribunal has before it 8 applications (made by the Applicant) to join a number of individual persons as respondents to the proceedings. The applications are opposed.

2 The persons sought to be joined are set out below:

· Professor E (proposed second respondent)

· C (proposed third respondent)

· Dr D (proposed fourth respondent)

· Professor G (proposed fifth respondent)

· B (proposed sixth respondent)

· Professor J (proposed seventh respondent)

· Professor H (proposed eighth respondent)

· Professor I (proposed eleventh respondent)

3 The Applicant has also sought to join the University of New South Wales (UNSW) and Professor Peter Dodd, Dean of the Australian School of Management, as respondents nine and ten respectively to the proceedings. The Tribunal has previously declined to join the UNSW as a respondent : see Z v University of A (No. 2) [2001] NSWADT 138. That decision is currently under appeal. The Tribunal proposes to deliver a separate decision in relation to Professor Dodd.

Background to the Complaint

4 On 30 December 1997, the Applicant lodged a complaint with the Anti-Discrimination Board (“the Board”) alleging that between September 1995 and April 1997, the Respondent had unlawfully discriminated against him on the ground that he was presumed to be homosexual. (The Applicant maintains that he is not a homosexual person and has never claimed to be.) He also alleged that the Respondent had subsequently victimised him and that as a consequence of both the Respondent’s unlawful discrimination and victimisation, he suffered great loss.

5 We do not propose to discuss in any detail the vast number of wide ranging allegations made by the Applicant in his voluminous correspondence to the Board over a period of nearly 2 years from 30 December 1997 to 10 November 1999, the date on which the Board was requested to refer the complaint to the Administrative Decisions Tribunal (“the Tribunal”). The correspondence received by the Board from the Applicant also makes reference to allegations of fraud, gross academic misconduct and plagiarism which the Applicant claims are related to his allegations of unlawful discrimination and victimisation. The correspondence also makes reference in very general terms to allegations of homosexual vilification. The significance of this will emerge later in this decision. For present purposes, it suffices to say that the President of the Board described the complaint in his letter of referral to the Tribunal as one alleging discrimination on the ground of presumed homosexuality in the area of education and victimisation. No mention is made in the President’s referral letter to any complaints of:

· Discrimination on the ground of presumed disability, viz, paranoid schizophrenia

· Discrimination on the ground of presumed disability, viz, HIV / AIDS

· Imputed homosexual vilification

· Imputed HIV / AIDS vilification.

Notwithstanding this “silence” in the President’s letter, all of these alleged contraventions of the Act are now relied on by the Applicant as forming part of his case.

6 Given the very detailed and complex correspondence between the parties and the Board during the period referred to above, Mr Grime, solicitor for the Respondent, originally submitted in his written submissions dated 27 June 2000 that it was only by a process of “guess work” that the precise nature of the Applicant’s claims could be defined. While he acknowledged that the Tribunal must deal with the Applicant’s case on its merits and allow an unrepresented Applicant some latitude in presenting his case, Mr Grime submitted that any prejudice that might flow to the Respondent as a result of having to “guess” at the basis of the Applicant’s claims should not result in disadvantage being caused to the Respondent. In effect, it was submitted that in relation to some individuals, it may be premature to join them as respondents at this stage of the proceedings and that the issue of joinder may need to be reconsidered in the light of any clearer and stronger definition of the Applicant’s claims at a later date.

7 In an endeavour to address the concerns expressed by Mr Grime in his written submissions, the Tribunal directed the Applicant to file his Points of Claim. (All directions in relation to the filing of evidence were deferred pending the outcome of the present application.) This was done in a very detailed 44 page document on 28 July 2000. Given that the document clearly and exhaustively defines the Applicant’s respective claims against each of the proposed respondents, it is no longer accurate to maintain that the Applicant’s claims lack definition. Nonetheless we have taken Mr Grime’s general concerns about the Applicant’s claims into account in determining the present applications.

8 It appears that the Applicant’s primary claim is that the Respondent awarded him a second class honours degree rather than a first class honours degree on the ground of his presumed homosexuality. He alleges that his studies in his honours year were constantly disrupted by discrimination and victimisation.

9 A subsidiary claim by the Applicant is that when he attempted to obtain tutorial work at the UNSW through Associate Professor Lodewijks, references were given by the staff of the Respondent that portrayed him in a negative light. He alleges that the sole reason for the referees furnishing these unfavourable comments was that they believed him to be homosexual.

10 For the purposes of the present applications, it is appropriate to summarise the primary allegations (as we currently understand them based on the material contained in the President’s Report and the material filed thus far in the Tribunal) in the following way in paragraphs 11-20.

11 During an F class taught by Dr D (a lecturer in the Faculty) on 6 September 1995, Dr D allegedly told the class (while discussing the concepts of hetroskedasticity and homoskedasticity) that he hated homosexuals and did not want anyone who was “gay” near him or touching him. Dr D also allegedly asked whether anyone in the class was “gay” and while doing so, looked at the Applicant “on a continual basis”

12 On 30 October 1996, a fellow F student named Ms C allegedly said to the Applicant during a private conversation between them in a corridor in the F Facility that he was “in love with” Dr D and that “everyone knew” this. In making this comment, it is alleged that Ms C presumed the Applicant was homosexual.

13 It is also alleged that Ms C repeated the comment that the Applicant was “in love with” Dr D during a discussion with the Applicant (in the presence of witnesses) at the University of New South Wales in late April 1997 and that Ms C said this was known by all members of the Respondent’s F Faculty. (There is currently no material before us to suggest that anyone else heard this conversation between the Applicant and Ms C.)

14 Based on alleged unfavourable treatment afforded to him by the Respondent, and Dr D, the Applicant alleges that Ms C told Dr D of her belief that the Applicant was in love with him and further, and that she also told various staff members.

15 Consequent upon the allegations in paragraphs 11-13, it is alleged that Dr D and other staff members of the F Facility thought the Applicant was homosexual.

16 During the discussion with Ms C in late April 1997 (referred to in paragraph 13 above), Ms C allegedly attempted to dissuade the Applicant from making a discrimination complaint to the Respondent by telling him that both the Head of the F Faculty, Professor E, and the Dean of the Commerce Faculty, Professor G, would suppress the complaint.

17 In August 1998, Ms B allegedly victimised the Applicant by releasing correspondence to a psychiatrist named Dr Leon which the Applicant had written and provided to Ms B in confidence. Ms B allegedly said to the Applicant inter alia that he had been given a psychiatric evaluation of “paranoid schizophrenic with delusions of grandeur” and that he had been sexually abusing his own son. She allegedly threatened to reveal these accusations publicly if the Applicant pursued his complaint against the Respondent.

18 Ms B also allegedly told the Applicant that Dr D would make a counter claim of sexual harassment against the Applicant if he pursued his complaint against the Respondent.

19 It is alleged that as a consequence of the Respondent’s discrimination and victimisation, the Applicant suffered great loss. Inter alia he:

· was awarded a second class honours degree instead of a first class honours degree

· missed out on scholarship and teaching opportunities

· was alienated by various staff members and students

· was unable to get anyone within the Respondent University to act on his complaints.

20 As the corollary of the above mentioned loss, Ms C allegedly obtained a first class honours degree in F, the University Medal for F, a scholarship and admission to the Australian Graduate School of Management (at the University of New South Wales) by unlawful means.

Background to the Joinder Applications

21 Pursuant to s 94(1) of the Anti-Discrimination Act, 1997 (“the Act”), the Applicant’s complaint to the Board was subsequently referred to the Tribunal on 19 January 2000. The only respondent named by the President of the Board in the letter of referral was the present Respondent. It is apparent that all the proposed respondents are mentioned by the Applicant in his many letters and attachments forwarded to the Board. Although the President elected not to name any of them as respondents to the complaint, this does not preclude the Tribunal from joining all or any of them as respondents to the present proceedings.

22 The Applicant filed seven of the present joinder applications in the Tribunal on 22 May 2000 along with his application to join the UNSW as a respondent. Detailed written reasons for seeking to join each of the seven persons as respondents were also filed in the Tribunal.

23 Mr Grime made it clear at the hearing on 23 June 2000 that he was appearing for all seven proposed respondents and that the Respondent University was prepared to accept legal liability for the actions of all seven individuals. He filed lengthy written submissions opposing the joinder applications together with a large bundle of emails and various other documents.

24 Given the complexity of the case and the opposition to joining the proposed respondents, the legal argument occupied a number of days. On 26 February 2001, the Applicant sought to join Professor I as the eleventh respondent to the proceedings. Mr Grime indicated that he also appeared for her and in the course of written submissions subsequently filed with the Tribunal on 15 March 2001, he stated that he opposed her joinder and sought to rely on the earlier written submissions made in respect of the other proposed respondents. The Tribunal understands that the Respondent University is also prepared to accept legal liability for her actions.

Reasons for Joinder

25 The Applicant’s written reasons for seeking to join proposed respondents 2 – 8 are set out in his Points of Claim filed 28 July 2000, and his detailed reasons filed on 22 May 2000 (amended 10 June 2000). In respect of Professor I, the Applicant’s reasons are set out in the document handed up at the hearing on 26 February 2001. The reasons given in these documents span many pages and are best discussed in respect of each proposed respondent in turn. In essence, the Applicant alleges that all 8 proposed respondents have contravened the provisions of the Act by committing various acts of discrimination, vilification and victimisation.

26 The Applicant’s written reasons for seeking to join the proposed respondents were expanded upon during the course of oral legal argument. While it is clearly necessary to discuss each proposed respondent in turn, in general terms the Applicant submits that there are valid legal reasons for doing so.

27 The Applicant also submits that if the Tribunal were to decline his joinder applications, it would be contrary to the earlier decisions of the Tribunal (differently constituted) in Hughes v Bowral Co-operative Trading Ltd & Ors [1997] NSWEOT 300; and Borg v Commissioner Department of Corrective Services [2000] NSWADT 118. In both these cases, the Tribunal exercised the discretion vested in it (pursuant to s 98 of the Act) in favour of joinder. The Applicant submits that the present circumstances are not materially different from those which existed in Hughes and Borg. In Borg, the Commissioner for the Department of Corrective Services sought to distance himself from the conduct of Mr Wheeler Smith, who was ultimately joined as a respondent to the proceedings, maintaining that he had not authorised the alleged conduct. In the present case, no such conflict is relied upon as the Respondent University is prepared to accept legal responsibility for the conduct of all the proposed respondents.

Reasons for Opposing Joinder

28 The proposed respondents’ written reasons for opposing joinder are set out in Mr Grime’s submissions filed on 23 June 2000 and 15 March 2001. These reasons were expanded upon at length during the course of oral argument. In essence, Mr Grime submits that based on the material thus far available, it is reasonable for the Tribunal to conclude:

· The Applicant’s allegations of presumed disability discrimination, imputed HIV / AIDS discrimination and imputed HIV / AIDS vilification do not form part of the complaint lodged with the Board.

· With the exception of Ms C, the Applicant’s allegations of imputed homosexual vilification do not form part of the complaint lodged with the Board.

· In respect of those allegations which do not form part of the complaint lodged with the Board, the Tribunal has no power to join any of the proposed respondents.

· In the absence of reliable, corroborating, objective evidence, the proposed respondents should not be joined merely based on assertions made by the Applicant, particularly those based on his stated “telepathic ability”.

· Taking the Applicant’s proposed case at its highest, there is no reasonable basis for joining any of the proposed respondents.

· The Applicant is not seeking to join the individuals in question for legitimate forensic purposes. Rather, his motive is one of revenge.

· The joinder applications are designed to cause the individuals concerned distress, hurt and/or embarrassment.

· In relation to Dr D and Ms C in particular, the Applicant has expressed a desire to take action to “destroy” them. The Tribunal should not be seen to be a party to a personal vendetta.

· None of the proposed respondents were involved in the processes of investigation and conciliation conducted by the Board.

· The Applicant’s legal interests would not be prejudiced in any way by the failure to join any of the proposed respondents, particularly given the Respondent’s preparedness to accept legal responsibility for the actions of all the proposed respondents.

· Joining one or more of the proposed respondents would unnecessarily lengthen the hearing, add to the associated administrative burden, and significantly increase costs.

· Failure to join a person as a respondent does not preclude them from being summonsed to give evidence. Indeed, the Respondent is prepared to make all the relevant persons available for the purpose of being cross examined.

29 The Applicant submits that none of Mr Grime’s submissions carry any weight.

Relevant Legislation

30 The Tribunal’s power to join a person as a party to any proceedings before it is set out in both s 98 of the Act and s 67 of the Administrative Decisions Tribunal Act, 1997 (“Tribunal Act”).

31 Section 98 of the Act

Section 98 of the Act provides:

(1) Where, before the holding of an inquiry, or at any stage during the holding of an inquiry, the Tribunal is of the opinion that a person ought to be joined as a party to the inquiry, it may, by notice in writing given to that person, join that person as a party to the inquiry.

(2) If a person is joined as a party to the inquiry as a complainant or respondent, the person is for the purposes of this Part taken to be a complainant or respondent (as appropriate) in relation to the complaint concerned.

32 If any of the proposed respondents are joined pursuant to s 98 of the Act, they are deemed to be a party to the proceedings under s 67(1)(d) of the Tribunal Act. In accordance with that provision, a party to the Tribunal’s proceedings is deemed to be any person specified by or under any enactment as a party to the proceedings.

33 This Tribunal discussed the nature of s 98 of the Act and s 67 of the Tribunal Act in Z v University of A (No. 2) 2001 NSWADT at paras 32-37:

32 The clear import of s 98 is that a person who is joined as a party to any proceedings before the Tribunal is deemed to be either a complainant or a respondent (whichever is appropriate) in relation to the particular complaint. The Tribunal can therefore join a person as a respondent after a complaint has been referred to it by the Board and without the need for a person to have been a respondent during the processes of investigation and conciliation conducted by the Board.

33 Significantly by making provision for a person to be joined in this way by the Tribunal, the Act does not require the Applicant to lodge a fresh complaint. This is because a person joined by the Tribunal as a respondent becomes a respondent to the existing complaint: see Hughes v Bowral Co-operative Trading Ltd & Ors [1997] NSWEOT 30; Borg v Commissioner, Department of Corrective Services [2000] NSWADT 118.

34 Section 98 of the Act confers a discretion on the Tribunal to join a person as a party to any proceedings, provided the Tribunal is satisfied that it is appropriate to do so. Although the Act does not specify what factors should be taken into account in the exercise of this discretion, clearly the Tribunal must be satisfied that there is some link between the person sought to be joined and the existing complaint. Indeed, in both Hughes and Borg the persons who were subsequently joined as respondents were considered to be an integral part of the existing complaints.

35 Section 67 of the Tribunal Act

Section 67(4) of the Tribunal Act provides:

“The Tribunal may, by order, make a person who is not a party to proceedings for an original decision or review of a reviewable decision a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are likely to be affected by the original decision (or are affected by the reviewable decision).”

36 Section 67(4) of the Tribunal Act clearly confers a discretion on the Tribunal to make a person a party to any proceedings provided it is satisfied that the interests of the person are likely to be affected by the original decision. “Original decision” is defined in s 7 of the Tribunal Act as a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision maker. An example of the original jurisdiction of the Tribunal is that which it exercises under Part 7A of the Act.

37 The scope of s 67(4) is not entirely clear since the expression, “interests likely to be affected”, is not defined anywhere in the Tribunal Act.

34 Given that none of the proposed respondents wish to be made a party to the present proceedings, any order made by the Tribunal under 67(4) must be made of the Tribunal’s own motion (albeit in response to Mr Z’s applications).

Joinder: Exercise of Discretion

35 Neither s 98 of the Act nor s 67(4) of the Tribunal Act give any direct guidance to the Tribunal as to how to exercise its discretionary power of joinder. Various cases were referred to during the course of oral legal argument by both the Applicant and Mr Grime to support their respective positions. The Applicant placed particular reliance on Hughes v Bowral Co-operative Trading Ltd & Ors [1997] NSWEOT 30; Borg v Commissioner, Department of Corrective Services [2000] NSWADT 118; and Crook v Department of Education and Training (1998) NSWEOT, 12 August 1997.

36 Whilst helpful in some respects, none of the cases referred to by either the Applicant or Mr Grime contain a detailed analysis of the factors to be taken into account in the exercise of the Tribunal’s discretionary power of joinder. What emerges instead is that each case must be considered on its own merits.

37 In Elmaraazey v University of NSW & Ors [1996] HREOCA 17, during the course of the inquiry conducted by the Inquiry Commissioner, Mr Basten QC, the Complainant sought on more than one occasion to join other individuals as respondents (in addition to the three Professors already named as respondents). The persons concerned objected to being joined and the Complainant’s applications were refused. It appears that a persuasive factor in reaching this conclusion was that the Respondent University had at no stage sought to avoid legal responsibility for the conduct of the individuals in question. In dismissing the case, Mr Basten QC noted that as a practical matter, the dismissal of the complaints against the University involved the finding that the conduct of its relevant officers and employees did not constitute unlawful discrimination, whether or not they were joined as parties (see s 8.1 of the decision).

38 Mr Grime relies on the above remarks of Mr Basten QC to support the proposition that in circumstances (such as the present) where the Respondent University has indicated its preparedness to accept legal responsibility for the conduct of all persons sought to be joined, failure to accede to the Applicant’s joinder applications would not prejudice his legal interests in any way. In particular, it would not diminish the legal remedies available to him.

39 Mr Grime also relies on a recent decision of the Fair Trading Tribunal in Jameson v FAI General Insurance Co Ltd 8 June 2000 (upheld on appeal, 4 August 2000), to support his submission that in circumstances where the Applicant’s legal rights will not be adversely affected by failing to accede to his joinder applications, the Tribunal should not unnecessarily add to the legal costs and administrative burden associated with the conduct of the case. In Jameson, Judicial Member Forbes said at paras 78-79:

78 Furthermore that, as stated in Samad, by Priestley and Fitzgerald JJA:
“Courts must do their best to see that disputes are litigated as quickly and cheaply as possible. Unnecessary parties and / or issues add to the already high cost of litigation and effectively make it uneconomic for many ordinary citizens to resort to the courts.” (at para 3)

“The escalating costs of litigation meant it was imperative for a court to avoid joining unnecessary parties …”

“The addition of an extra opponent must obviously impose a heavy burden on an appellant in terms of time and money, and should be acceded to only with great reluctance.” (para 13)

79 And, of course, those remarks have to be read in the context of the relevant objectives of the Act which governs the operation of this Tribunal which, in particular are: [s3 FTT Act]:
“(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, and

(c) to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner.”

40 We note that the provisions of the Fair Trading Tribunal Act quoted above are consistent with the comparable provisions of the Tribunal Act : s 73. We also note the remarks of the President (O’Connor DCJ) on appeal, viz, that the question of whether a party ought to be joined will always depend on the specific facts and circumstances of each case : Jameson v FAI General Insurance Co Ltd 4 August 2000, para 31.

41 Although Mr Grime does not seek to invoke the provisions of s 111(1) of the Act to have the complaint dismissed, he submits that the decision of Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 provides some guidance to the Tribunal in determining whether in the absence of any reliable, corroborating, objective evidence, the Applicant’s assertions in the present case provide a sufficient basis for joining any of the proposed respondents.

42 The decision of Lal provides a useful analysis of the matters to be considered by the President of the Board when determining whether to decline a complaint. In Lal, it was held that the President of the Board had not made the correct and preferable decision in determining that Mr Lal’s complaints of discrimination, harassment and victimisation did not disclose any contravention of the Act. After analysing the decision of Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60, the Deputy President concluded:

24 Based on these observations, I would re-frame the test set down by the Tribunal in Crewdson’s Case to state that:
The President may decline a complaint as not disclosing a contravention of the Act if:

The complainant fails to allege a contravention of a specific section of the Act (for example, section 50) or does not allege behaviour prohibited by the Act (for example, sex discrimination in hiring), or

the respondent is not a person who is arguably amenable to the Act; or

after reasonable investigation, including discussions with the complainant, it is not arguable that there is some evidence in support of the material facts.

43 Mr Grime submits that the remarks quoted above have equal application to a determination by the Tribunal as to whether to join a person as a respondent to proceedings at a stage subsequent to the President’s investigation of the complaint. He submits that the Applicant must be able to point to some material that is capable of becoming “evidence”. For example, an assertion by the Applicant that he heard certain discriminatory remarks or observed certain discriminatory conduct is capable of being converted into evidence at a hearing. Mr Grime concedes that the alleged remarks said by Ms C and Dr D directly to the Applicant (see paras 11-13 above) are capable of becoming evidence.

44 By way of contrast, Mr Grime submits that the Applicant’s assertions relating to Professor E, for example, are not capable of being converted into evidence. It is submitted that the Applicant’s entire case against Professor E is based on the following assumptions:

(1) Ms C believed the Applicant to be homosexual.
(2) Ms C told Professor E that the Applicant was homosexual.
(3) Professor E hated homosexuals.
(4) Professor E’s actions were discriminatory on the basis of the Applicant’s perceived homosexuality.

45 The Tribunal is aware of the difficulties associated with establishing a case of unlawful discrimination in the absence of direct evidence. Often the primary source material from which inferences might properly be drawn to prove an applicant’s case is in the possession of the respondent. Often too, the only mode of proof available to an applicant is to rely upon a concatenation of circumstances from which an inference might properly be drawn of unlawful discrimination : see the remarks of Graham DCJ in Atkins & Ors v Director General of Education which were quoted on appeal by Mahoney J (1989) EOC 92-263 at 77, 625-77, 626.

46 This view is consistent with the approach adopted in Reyes – Gonzalez v Sydney Institute of Technology [1998] NSWEOT 4 and Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16. Although the Tribunal in Reyes – Gonzalez doubted that at a hearing on the merits the complainant would be able to substantiate his allegations, it was not convinced that the allegations were “lacking in substance” such as to justify the complaint being dismissed under s 111(1) of the Act. The Tribunal made the following remarks at paras 4.6 and 4.7:

4.6 Prior to the commencement of a hearing on the merits, it is difficult if not impossible for the Tribunal to determine whether there may be substance to a complainant’s allegations. The extent of the Tribunal’s ability to determine whether there may be substance to a complainant’s allegations will depend upon the stage which has been reached in any hearing on the merits.

4.7 Where a complainant concedes that the whole of his or her case is documented, it may be possible for the Tribunal to examine the documentation on a pre-hearing basis in order to determine whether documentation is capable of supporting the allegations in the complaint. However, it will generally be far more appropriate that the merits of a complainant’s case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis. This is particularly true in the case of complainants who lack legal representation.

47 The Tribunal in Reyes – Gonzalez then went on to say at para 4.8:

“… Prima facie, it is difficult to see the statements in question as racist. However, it is possible that when viewed in context one or more of the statements might be found to be discriminatory.”

48 Based on the above analysis and taking the Applicant’s case at its highest (Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18; Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73; Tredinnick v Wentworth Area Health Service [2000] NSWADT 172), it is not in the Tribunal’s view appropriate to conclude at this early stage of the proceedings that the Applicant’s assertions in relation to, say, Professor E are not capable of being converted into evidence. While there is no material currently before the Tribunal to suggest that assumptions (2)-(4) in para 44 are correct, evidence may be forthcoming which establishes:

(1) Based on the comment she made to the Applicant that he was in love with Dr D, Ms C believed the Applicant to be homosexual. (Attached to the Applicant’s email to Dr D dated 14 May 1997 is a proposed email to Professor G which states that on 5 May 1997 Ms C made fun of him (the Applicant) saying that he loved Dr D and that he was attracted to him).

(2) Ms C, or another proposed respondent, told Professor E that the Applicant was homosexual.

(3) Professor E held discriminatory attitudes towards homosexuals.

(4) Professor E’s conduct in relation to the Applicant was discriminatory on the ground of the Applicant’s presumed homosexuality.

It does not follow from the conclusion reached above that it automatically follows that the Tribunal ought to join Professor E as a respondent to the proceedings. The nature of the allegations against him is still a relevant factor to be taken into account together with other relevant factors such as whether the alleged conduct arose in the course of his official duties as an employee of the Respondent or otherwise (in which case the appropriateness of the Respondent accepting legal responsibility for his actions would be called into question).

49 We now turn to discuss in turn whether any of the proposed respondents ought to be joined to the proceedings.

Professor E – Proposed Second Respondent

50 The Applicant seeks the following orders:

(a) That E, as an employee of the University of A, in association with J discriminated against the Complainant in providing a false reference for employment on the ground of the Complainant’s imputed homosexuality.

(b) That E, as an employee of the University of A discriminated against the Complainant in withholding his results so that the Complainant could not graduate or apply for a scholarship on the ground of the Complainant’s imputed homosexuality.

(c) That E, as an employee of the University of A victimised the Complainant by ignoring numerous complaints made by the Complainant, because the Complainant was discriminated and victimised on the ground of the Complainant’s imputed homosexuality.

(d) That E, as an employee of the University of A aided and abetted the discrimination of the Complainant on the ground of the Complainant’s imputed homosexuality by D.

(e) That E, as an employee of the University of A aided and abetted the victimisation of the Complainant on the ground of the Complainant’s homosexuality by D and C .

(f) That E, as an employee of the University of A aided and abetted the vilification on the ground of imputed homosexuality of the Complainant by Ms C .

51 Details of the various allegations against Professor E are set out in particulars RC 1) – RC 37) of the Points of Claim and particulars 1) – 18) of the Applicant’s written application to join Professor E to the proceedings. After carefully considering all the relevant material and weighing up all the competing submissions for and against joinder, the Tribunal is not of the view that it ought to join Professor E as a respondent. In reaching this view, we have not found it necessary to have any regard to the submissions made by Mr Grime to the effect that the Applicant’s joinder application is motivated by revenge and designed to cause Professor E distress, hurt and embarrassment. Moreover, with the exception of the allegations of imputed homosexual vilification ((f) above), we have not found it necessary to base our decision on the strength of the allegations against Professor E.

Imputed Homosexual Discrimination (orders (a), (b) and (d) in para 51 above).

52 The Tribunal understands the Applicant to be seeking to establish contraventions of s 49ZO(2), s 49ZP and / or s 49ZM of the Act.

Section 49ZO(2) provides:

(2) It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

Section 49ZP provides:

It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of homosexuality:
(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

Section 49ZM provides:

It is unlawful for an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of homosexuality:
(a) by refusing or failing to confer, renew or extend the authorisation or qualification,

(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification,

(c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.

54 Discrimination on the ground of homosexuality is defined in s 49ZG of the Act. Section 49ZG provides:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of homosexuality if, on the ground of the aggrieved person’s homosexuality or the homosexuality of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have such a relative or associate who is a homosexual person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1)(a), something is done on the ground of a person’s homosexuality if it is done on the ground of the person’s homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.

55 The Applicant is entitled to succeed in his alleged claims of unlawful discrimination (as described in (a), (b) and (d), para 51 above) provided he can establish that the Respondent is vicariously liable for Professor E’s conduct either by virtue of the operation of s 53(1) of the Act or at common law.

56 If the Applicant cannot prove this, his claims of unlawful discrimination under s 49ZO(2), s 49ZP and / or s 49ZM fall down. The Act is directed at the conduct of the Respondent University in its capacity as an educational authority (s 49ZO(2)), a provider of goods and services (s 49ZP) and as a qualifying body (s 49ZM). Any findings of unlawful discrimination under the Act must first be made against the Respondent University before joint and several liability can be established against Professor E (s 53(2) of the Act). Importantly, any finding of liability against Professor E (for committing an act or acts of unlawful discrimination) is not dependent upon him having been a respondent to the proceedings.

57 In order to avoid legal liability under the Act, it sometimes happens that an employer such as the Respondent University denies that it is liable for the conduct of its employees and denies that it either expressly or impliedly authorised the conduct in question (s 53(1) of the Act). In the present case, the Respondent has indicated that it is not relying on any such defence and that it is willing to accept liability for Professor E’s alleged conduct. In these circumstances, the Tribunal does not consider that the Applicant’s legal interests will be prejudiced by a failure to join Professor E. It follows that we do not consider that the Applicant’s case against Professor E will be advanced in any way by joining him as a respondent.

Victimisation (orders (c) and (e) in para 51 above)

58 Section 50 of the Act provides:

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

59 The wording of s 50(1) makes it clear that the Applicant must have been subjected to a detriment “on the ground that” he had made a complaint or an allegation of the type set out in paragraphs (a) – (d). As was pointed out in Bogie v The University of Western Sydney (1990) EOC 92-313 at 78, 145, the clear legislative purpose of s 50(1) is to ensure that victims of discrimination will not be deterred from doing any of the acts set out in paras (a)-(d) by the fear that they may be further victimised. See also Shaikh v Commission, NSW Fire Brigade (1966) EOC 92-808 at 78, 986.

60 It is the Applicant’s case that Professor E ignored the various complaints he made to him about the conduct of Ms C. In his Points of Claim, he alleges:

“The Second Respondent (Professor E) received several complaints both in writing and in a phone call about the actions of the Third Respondent (Ms C) which were allegations of breaches of s 49ZT(1) and s 50 of the Act, which the Second Respondent (Professor E) ignored and actively attempted to stop the complainant from making further complaints.

The Third Respondent (Ms C), before the complaints made by the Complainant to the Second Respondent (Professor E) stated that if the Complainant made any complaints about his treatment, which for the purposes of the Act were contraventions of the Act (s 49ZO and s 49ZP), that the Second Respondent (Professor E) would suppress those complaints. The Third Respondent (Ms C) also stated that if any complaints were made to the Fifth Respondent (Professor G) the supervisor of the Second Respondent (Professor E), then the Fifth Respondent (Professor G) would also suppress the complaint . . .”

61 The Respondent submits that the substance of the Applicant’s “complaint” is set out in an email he sent to Professor E on 10 July 1997. It is submitted that there is nothing in the email that could be described as discriminatory conduct on Ms C’s part. Rather, it contains a “diatribe” against her alleging that she had caused the Applicant some sort of “nervous breakdown”. It is further submitted that, when properly constructed and interpreted, this email did not constitute any form of complaint for which the Respondent or Professor E needed to take any form of action, and that it was not until the Applicant lodged his letter with the Board that the “complaint” could be characterised as one raising allegations of discriminatory conduct or conduct which would amount to a contravention of the Act (see s 50(1) of the Act).

62 While the Applicant’s email of 10 July 1997 to Professor E does not make express mention of these matters, it is the Applicant’s case that he had previously complained to the Professor about the actions of both Ms C and Dr D in a telephone call in May or June 1997 and that he had been told to “forget about it”. According to the material contained in the President’s Report (Tab 11), the Applicant acknowledges that he did not specifically tell Professor E what these actions were but informed him that he had suffered a nervous breakdown. This however seems contrary to the Applicant’s Points of Claim (see para 60 above). The Applicant also claims that he made a total of 3 telephone complaints and two written complaints to Professor E. Accordingly, we do not consider that we are in a position at this stage of the proceedings to conclude that the victimisation allegations against Professor E are not capable of proof.

63 The Applicant is entitled to succeed in his alleged claims of victimisation (as described in (c) and (e) in paragraph 51 above) provided he can establish that Professor E’s actions (or inaction) amounted to a detriment within the meaning of s 50(1).

64 It is clear from the analysis in paras 60-62 above that Professor E’s alleged conduct arose in his capacity as Head of the F Faculty. In these circumstances, we consider it to be entirely appropriate for the Respondent University to accept legal responsibility for any acts of victimisation established against him. If, however, the Applicant were to allege that Professor E had subjected him to a detriment (in contravention of s 50 (1)) in circumstances beyond the ordinary scope of his duties as an employee of the Respondent University, it may not be appropriate for the Respondent to accept legal responsibility for his conduct. The potential conflict of interests may preclude such a course being adopted because, if proven, any finding of victimisation against Professor E in such circumstances may well be in his personal capacity as “the discriminator” (see s 50 (1)) rather than as an employee of the Respondent.

65 In the circumstances of the present case, we do not consider that the legal interests of either the Applicant or the Respondent will be prejudiced by a failure to join Professor E.

Imputed Homosexual Vilification (order (f) in para 51 above)

66 For the reasons given in relation to Ms C (see paras 69-75 below), we presently doubt whether the Applicant’s allegations are capable of amounting to a contravention of s 49ZT(1) of the Act. (Section 49ZT(1) prohibits homosexual vilification. It is set out in para 69 below). Accordingly, it is our view that in the absence of further material, it is not appropriate to join Professor E to the proceedings for the purpose of responding to the claim that he aided and abetted Ms C’s alleged vilification. In expressing this view, we are not at this stage dismissing the claim under s 111(1) of the Act. After the Applicant has filed his evidence in support of the claim, it may be that the Tribunal needs to reassess whether it sought to join Professor E to the proceedings.

C: Proposed Third Respondent

67 The Applicant seeks the following orders:

(g) That C, as an employee and student of the University of A by a public act subjected the Complainant to homosexual vilification.

(h) That C, as an employee and student of the University of A victimised the Complainant because he was to make a complaint of discrimination on the ground of the Complainant’s imputed homosexuality against D.

(i) That C, as an employee and student of the University of A was aiding and abetting the discrimination on the ground of the Complainant’s imputed homosexuality by D and E.

68 Details of the various allegations against Ms C are set out in particulars LST 1) – LST 25) of the Points of Claim and particulars 1) – 19) of the Applicant’s written application to join Ms C to the proceedings. Taking into account all relevant material and the competing considerations for and against joinder, the Tribunal is not of the view that it ought to join Ms C as a respondent to the proceedings.

Imputed Homosexual Vilification (order (g) in para 67 above)

69 Section 49ZT(1) of the Act provides:

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

70 Section 49ZS defines a public act to include:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

71 Relying on the factual matters set out in paras 12 – 13 of this decision, Mr Grime submits that there is no “public act” to found any vilification complaint. He submits that on both of the occasions in question the comment that the Applicant was in love with Dr D was made during the course of a private conversation between the Applicant and Ms C. In relation to the conversation allegedly held in the corridor of the Respondent’s F Faculty, Mr Grime relies on the Applicant’s assertion that no other persons were present. In relation to the conversation allegedly held in a room at the UNSW, he relies on the answers given by the Applicant during the course of oral argument before the Tribunal to the effect that he Applicant was not aware that anyone else had heard the comment and would not be relying on any evidence that they had.

72 Mr Grime also submits that even if given the meaning contended for by the Applicant (that Ms C believed the Applicant to be homosexual), Ms C’s simple comment that the Applicant was in love with Dr D and that everyone knew this cannot, in the absence of further evidence, satisfy the stringent test of inciting hatred towards, serious contempt for, or severe ridicule of, set out in s 49ZT(1). The Applicant refutes this submission.

73 The Applicant also claims that by allegedly informing members of staff in the F Faculty that he was homosexual and that he was in love with Dr D, Ms C’s conduct contravened s 49ZT(1). The Respondent disputes this.

74 Relying inter alia on the decisions of the Tribunal (differently constituted) in R v Marinkovic and Marinkovic (1986) EOC 92-841 and Western Aboriginal Legal Services Ltd v Jones & Anor (2000) NSWADT 102, the Applicant maintains that the essential elements of the offence of imputed homosexual vilification are capable of being established in relation to Ms C’s conduct.

75 Having carefully examined all the relevant material, at present we doubt whether Ms C’s alleged conduct is capable of contravening s 49ZT(1) and accordingly, in the absence of further material, we do not consider it is appropriate to join Ms C to the proceedings for the purpose of responding to the Applicant’s claims of imputed homosexual vilification. In expressing this view, we are not at this stage dismissing the allegations under s 111(1) of the Act. In our opinion, it would not be appropriate to consider adopting such a course until the Applicant has filed all his evidence. We may at that stage also need to reconsider whether we ought to join Ms C to the proceedings to respond to the Applicant’s vilification claims.

Imputed Homosexual Discrimination (order (i) in para 67 above)

76 The Applicant alleges in his Points of Claim that Ms C actively informed members of staff in the Respondent’s F Department that the Applicant was homosexual and that he was in love with Dr D. In so doing, Ms C allegedly aided and abetted the Respondent, Professor E, Dr D and Professor J in committing breaches of ss 49ZM, 49ZO and 49ZP.

77 Mr Grime submits that there is no evidence that Ms C informed any members of staff, students or other persons that she believed the Applicant was homosexual or that he was in love with Dr D.

78 In the absence of further material, it is difficult to see how Ms C’s alleged conduct is capable of contravening ss 49ZM, 49ZO and 49ZP of the Act. At present we do not consider we ought to join Ms C to the proceedings for the purpose of responding to the Applicant’s claims of imputed homosexual discrimination. In expressing this view, we are not at this stage dismissing the claims under s 111(1) of the Act. Moreover, once the Applicant has filed all his evidence, we may need to reconsider our decision not to join Ms C to the proceedings to respond to the claims in question.

Victimisation (order (h) in para 67 above)

79 It is the Applicant’s case that in April 1997 Ms C attempted to dissuade him from making a complaint to Professor E about inter alia Dr D’s discriminatory conduct and further, that Ms C claimed that any complaint to Professor E, Professor G or the Respondent University would be suppressed (see para 60 above).

80 Mr Grime submits that the Applicant’s motive in seeking to join Ms C is one of revenge. In his written submissions, Mr Grime states:

“For the purposes of the matters raised by the Applicant, Ms C was a student at the University of A. Whilst Ms C held some part time tutoring positions, she was never in the role of tutor for the Applicant, nor in any other “official” role, vis à vis the Applicant. They were acquaintances during the honours year in 1996.”

81 The Applicant is entitled to succeed in his claim of victimisation provided he can establish that Ms C’s alleged conduct amounted to a detriment within the meaning of s 50 (1) in that it placed him under a disadvantage as to a matter of substance, as distinct from a trivial matter: see Wheeler v Shellharbour Golf Club Limited [1995] NSWEOT 85.

82 Having carefully examined all the relevant material (including Tab 11 of the President’s Report) and taking into account the nature of the relationship between Ms C and the Applicant (ie. that they were both students), we presently doubt whether Ms C’s alleged conduct is capable of contravening s 50(1). Accordingly, in the absence of further material, we decline to join Ms C to the proceedings for the purpose of responding to the Applicant’s victimisation claim. In reaching this view, we have not found it necessary to take into account Mr Grime’s submission that the Applicant’s motive in seeking to join Ms C is one of revenge.

Dr D: Proposed Fourth Respondent

83 The Applicant seeks the following orders:

(j) That D, as an employee of the University of A subjected the Complainant to discrimination on the ground of imputed homosexuality in his undergraduate honours studies.

(k) That D, as an employee of the University of A subjected the Complainant to discrimination on the ground of imputed homosexuality by removing the Complainant’s results so that he could not graduate and so that he could not apply for a scholarship.

(l) That D, as an employee of the University of A aided and abetted the discrimination on the ground of the Complainant’s imputed homosexuality by staff and students of the F Department of the University of A.

(m) That D, as an employee of the University of A aided and abetted the University of A in the discrimination on the ground of the Complainant’s imputed homosexuality at the “Management Party”.

(n) That D, as an employee of the University of A victimised the Complainant when he was confronted with a complaint of discrimination on the ground of the Complainants imputed homosexuality, which the Complainant was to make against him.

(o) That by a public act, D, as an employee of the University of A vilified the complainant on the ground of imputed homosexuality and imputed HIV / Aids status by stating that he hated homosexuals, that he did not want them touching him or coming near him. The Complainant was perceived as a member of that group and treated accordingly.

84 Taking all relevant matters into account, including the competing considerations for and against joinder, the Tribunal is of the view that it ought to join Dr D as a respondent to the proceedings in relation to the Applicant’s claims of:

· imputed homosexual discrimination

· victimisation

· imputed homosexual vilification.

85 However, we do not at this stage consider that we ought to join Dr D to the proceedings for the purposes of responding to the Applicant’s claims of:

· discrimination on the ground of presumed disability, viz, HIV / AIDS

· imputed HIV / AIDS vilification.

We discuss our reasons in paras 99-104 below.

Imputed Homosexual Discrimination (orders (j), (k), (l) and (m) in para 83 above)

86 The Tribunal understands the Applicant to be seeking to establish various breaches of s 49ZO(2), s 49ZP and / or s 49ZM of the Act. For present purposes, we do not consider it necessary to discuss the details of these alleged breaches. Suffice to say, they are scattered amongst the 112 individual particulars against Dr D in the Applicant’s Points of Claim and the 34 particulars in the Applicant’s written application to join Dr D to the proceedings.

87 It is common ground that in his capacity as an employee of the Respondent, Dr D taught the Applicant in 1995 and 1996. It is also agreed that in 1966, Dr D was the Honours Co-ordinator for that year but that he did not supervise the Applicant’s honour’s thesis.

88 In essence, it is the Applicant’s case that as a result of Dr D’s alleged comments to the class that inter alia he hated homosexuals (see para 11 above) and Ms C’s alleged conduct in stating that the Applicant was in love with Dr D and that everyone knew this (see paras 12 - 13 above), Dr D unlawfully discriminated against him on the ground that he presumed him to be homosexual (as set out in the Points of Claim). Mr Grime submits that there is no reliable, corroborating, objective evidence to support the Applicant’s assertions and invites us to conclude that the basis of the case against Dr D is founded on the Applicant’s “limited telepathic abilities” and further, that the joinder application is motivated by revenge.

89 In relation to the remarks allegedly made by Dr D during the course of an F class on 6 September 1995, Mr Grime submits:

· There were many other students in the class other than the Applicant. Not one person has made a complaint, confirmed that these words were spoken or raised any issue with the Respondent, Dr D or anyone else about Dr D’s alleged conduct.

· The Applicant has not been able to produce any witness to state that these remarks were said, notwithstanding that his complaint has been before official bodies since late 1997.

· Based on email correspondence (particularly the letter to Professor G attached to the Applicant’s email to Dr D dated 14 May 1997), and various comments made by the Applicant to B about his telepathic abilities (see Ms B’s affidavit of 21 July 2000), it is reasonable to conclude that the alleged remarks were never said by Dr D.

· Even if the remarks were said, there is currently no evidence to suggest that any alleged differential treatment (as set out in the Applicant’s Points of Claim) was on the ground of his presumed homosexuality.

90 For the purposes of the present application, we are not in a position to reach a concluded view as to whether the alleged remarks were actually said. The Applicant contends that they were. Given that we must take the Applicant’s case at its highest, notwithstanding the many concerns raised by Mr Grime we must, for present purposes, assume that the alleged remarks were made in the manner alleged. As to whether the alleged differential treatment of the Applicant occurred on the ground of his presumed homosexuality, we are not in a position to reach a concluded view until the hearing (see para 45 above). The Applicant asserts inter alia that Dr D treated him less favourably than other students by, for example, being available to them but not him, for after class consultations. Assuming Dr D did utter the remarks in question in the manner alleged, the Applicant may be able to establish at a hearing that a ground of such unfavourable treatment (if proven) was his presumed homosexuality.

91 The Respondent has indicated that it is prepared to accept legal liability for Dr D’s alleged conduct and that it will not be relying on a defence that it neither expressly nor impliedly authorised the particular conduct (s 53(1) of the Act). The question arises as to whether it is appropriate for the Respondent to accept legal responsibility for Dr D’s alleged conduct. Taking into account the nature of the relationship between Dr D and the Applicant (as disclosed in the Applicant’s lengthy email correspondence) and the nature of the allegations, it is not difficult to see a potential conflict of interests arising. The Tribunal may well conclude that the Respondent did not authorise some or all of the conduct in question.

92 Accordingly, notwithstanding the Respondent’s willingness to accept legal responsibility for Dr D’s alleged conduct, and notwithstanding all the matters relied on by Mr Grime in opposing joinder, we are of the view that we ought to join Dr D as a respondent to the Applicant’s claims of presumed homosexual discrimination.

93 In relation to Mr Grime’s submission that the Applicant’s motive in seeking to join Dr D is one of revenge, we note that the Applicant has expressed a desire in his email correspondence to destroy him (see the letter to Professor G attached to the Applicant’s email to Dr D dated 14 May 1997). However, in the absence of appropriate evidence, we are not able to conclude that it is a sufficient reason for not joining Dr D.

Victimisation (order (n) in para 83 above)

94 The Applicant seeks to prove that Dr D breached s 50(1) of the Act in the various ways set out in particulars AW 99) – AW 111) of his Points of Claim. In summary, the Applicant alleges that when he complained about Dr D’s discriminatory conduct, Dr D claimed inter alia that the Applicant would be responsible for the suffering caused to Dr D’s children (who, allegedly, were fictional and invented as a victimisation ploy to stop any discrimination complaint being made). The Applicant also alleges that Ms B subsequently told him that if he pursued his discrimination complaints, Dr D would make a complaint that he had been sexually harassed by the Applicant.

95 Mr Grime submits that Dr D was not in any position to subject the Applicant to any form of recognisable detriment within the meaning of s 50 (1), and submits that the Applicant’s allegations are not capable of contravening the Act.

96 Taking the Applicant’s case at its highest, we are unable to conclude that the victimisation allegations are not capable of amounting to a breach of s 50 (1). The question then arises as to whether it is appropriate to join Dr D as a respondent to these allegations. For the reasons given in paras 91-93 above, we are of the view that we ought to do so.

Imputed Homosexual Vilification (order (o) in para 83 above)

97 The Applicant alleges that as a consequence of stating publicly in class that he hated homosexuals and did not want any homosexual person to touch him or come near him, Dr D vilified him on the ground that he presumed him to be homosexual. In order to found a successful claim under s 49ZT(1) of the Act, it must be established that Dr D’s alleged conduct was a public act which incited hatred towards, serious contempt for, or severe ridicule of, the Applicant on the ground that he was presumed to be homosexual.

98 Relying on the matters set out in paras 87-89 above, Mr Grime submits that the Tribunal should not join Dr D to respond to the Applicant’s claim of vilification. As stated in para 90 above, we must take the Applicant’s case as its highest. That being so, we must, for present purposes, assume that the alleged remarks were made and in the manner alleged. Given that the remarks in question were allegedly said in the presence of other students, we are unable to conclude that they are not capable of contravening s 49ZT(1). Accordingly, for the reasons given in paras 91-93 above, we are of the view that we ought to join Dr D as a respondent to the Applicant’s claim of imputed homosexual vilification.

Imputed HIV / AIDS Discrimination

99 Although it is not expressly stated in his Points of Claim, we understand the Applicant to be alleging that as a consequence of stating publicly in class that he hated homosexuals and did not want any homosexual person to touch him or come near him, Dr D unlawfully discriminated against him on the ground that he was presumed to have HIV / AIDS. (The Applicant asserts that he has never been HIV / AIDS infected but that he had a gaunt appearance over an extended period as a result of a gastric virus). In order to found a successful claim in these circumstances, the Applicant needs to establish that at the relevant time:

· he was a person who was presumed to have HIV / AIDS;

· he had a disability within the meaning of s 4(1) and s 49A of the Act; and

· he was unlawfully discriminated against within the meaning of s 49B and s 49L(2) of the Act.

100 Taking the Applicant’s case at its highest and having carefully considered all the relevant material, including the oral and written submissions for and against joinder, at present we doubt whether Dr D’s alleged conduct is capable of contravening s 49L(2). Accordingly, in the absence of further material, we decline to join Dr D to the proceedings for the purpose of responding to the Applicant’s claim of unlawful discrimination on the ground that he was presumed to have HIV / AIDS (see para 104 below).

Imputed HIV / AIDS Vilification (order (o) in para 83 above)

101 For the purposes of Part 4F of the Act, which prohibits HIV / AIDS vilification, section 49ZXA defines “HIV / AIDS infected” to mean:

“infected by the Human Immunodeficiency Virus or having the medical condition known as Acquired Immunodeficiency Syndrome.”

102 Section 49ZXA defines a public act to include:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material; and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground that the person is or members of the group are HIV / AIDS infected or thought to be HIV / AIDS infected (whether or not actually HIV / AIDS infected).

103 In order to establish a breach of s 49ZXB(1), it must be established that Dr D’s alleged conduct (as set out in para 86 above) was a public act which incited hatred towards, serious contempt for, or severe ridicule of, the Applicant on the ground that he was thought to be HIV / AIDS infected. Taking the Applicant’s case at its highest and taking all relevant material and submissions into account, at present we doubt whether Dr D’s alleged conduct is capable of contravening s 49ZXB(1). Accordingly, in the absence of further material, we decline to join Dr D to the proceedings for the purpose of responding to the Applicant’s claim of imputed HIV / AIDS vilification.

104 Mr Grime invited the Tribunal to conclude that the Applicant’s allegations of presumed HIV / AIDS discrimination and imputed HIV / AIDS vilification do not form part of the complaint lodged with the Board and, therefore, that the Tribunal has no power to join Dr D to respond to those allegations. In view of our findings in paras 100 and 103 above, and in the absence of any application to dismiss the claims under s 111(1) of the Act, we do not consider it necessary to determine the issue at present.

Professor G: Proposed Fifth Respondent

105 The Applicant seeks the following orders:

(p) That G, as an employee of the University of A victimised the Complainant because he had made a complaint of discrimination on the ground of the imputed homosexuality and vilification by being thought to be a homosexual and victimisation against E and C.

(q) That G, as an employee of the University of A aided and abetted the victimisation of the Complainant by E and C.

(r) That G, as an employee of the University of A aided and abetted the imputed homosexual vilification of the Complainant by Ms C.

106 Details of the allegations against Professor G are set out in particulars GP 1) – GP 13) of the Points of Claim and particulars 1) – 14) of the Applicant’s written application to join Professor G to the proceedings. After carefully considering all the relevant material and weighing up all the competing submissions for and against joinder, we are not of the view that we ought to join Professor G as a respondent in relation to any of the Applicant’s claims.

Victimisation (orders (p) and (q) in para 105 above)

107 As we understand the Applicant’s case, he alleges that Professor G victimised him by ignoring his various complaints against Professor E, Ms C, and indirectly Dr D. Inter alia the Applicant relies on an email he forwarded to Professor G on 15 September 1997 (Tab 11 of the President’s Report), a copy of which he also sent to Professor I on the same day.

108 The applicant alleges that Professor G subjected him to a detriment within the meaning of s 50(1) of the Act by ignoring his complaints and by breaching the Respondent’s grievance resolution procedures. He further alleges that by protecting Dr D, Ms C and Professor E, Professor G’s conduct also contravened s 50(1). Mr Grime submits that the alleged failure of Professor G to deal with the Applicant’s complaints is to be seen as a systemic failure and, in that sense, there can be no cogent reason for joining Professor G as a respondent to the Applicant’s claims.

109 Having carefully examined all the relevant material and submissions, we are satisfied that Professor G’s alleged conduct arose in her capacity as Head of the Respondent’s Commerce Faculty. In these circumstances, we consider it to be appropriate for the Respondent University to accept legal responsibility for any acts of victimisation established against her (see para 64 above).

110 Accordingly, in the circumstances of the present case, we do not consider that the legal interests of either the Applicant or the Respondent will be prejudiced by a failure to join Professor G.

Imputed Homosexual Vilification (order (r) in para 105 above)

111 For the reasons given in relation to Ms C (see paras 69-75 above), we presently doubt whether the Applicant’s allegations are capable of amounting to a contravention s 49ZT(1) of the Act. Accordingly, in the absence of further material, we do not consider that we ought to join Professor G to the proceedings for the purpose of responding to the claim that she aided and abetted Ms C’s alleged vilification.

B: Proposed Sixth Respondent

112 The Applicant seeks the following orders:

(s) That B, as an employee of the University of A in her official capacity subjected the Complainant to victimisation which included the false accusations of sexual harassment of persons and the false accusations of the sexual abuse of a child.

(t) That B, as an employee of the University of A in her official capacity subjected the Complainant to discrimination on the ground of presumed disability.

(u) That B, as an employee of the University of A in her official capacity subjected the Complainant to victimisation of the Complainant because the Complainant had made a complaint on the ground of presumed disability discrimination against her.

(v) That B, as an employee of the University of A in her official capacity aided and abetted the victimisation of the Complainant by the University of A and its staff.

(w) That B, as an employee of the University of A in her official capacity aided and abetted the discrimination of the Complainant by D, G and E.

(x) That B, as an employee of the University of A in her official capacity aided and abetted the vilification of the Complainant by D and C .

113 At all relevant times, Ms B was the Respondent’s Director of EEO, Freedom of Information and Privacy. The Applicant’s detailed allegations against Ms B are set out in particulars CH 1) – CH 53) of the Points of Claim and particulars 1) – 28) of the Applicant’s written application to join Ms B to the proceedings.

114 The allegations against Ms B are summarised in the President’s Report (Tab 11) in the following way:

“On 11 August 1998 he (the Applicant) met with B at the University. At that meeting Ms B told him that she had given the emails he had provided to her to a psychiatrist. Ms B informed him that the psychiatrist had diagnosed him as being a paranoid schizophrenic with delusions of grandeur. He states that Ms B released the documents to the psychiatrist without his permission, ignoring the fact that the emails were private and confidential as he had previously told her.

In addition, Ms B accused him of interfering with a child and sexual harassment, and threatened to make these accusations public if he pursued his complaint of discrimination against the University.”

115 Taking into account all relevant material and the competing considerations for and against joinder, the Tribunal is of the view that it ought to join Ms B as a respondent to the proceedings but only in relation to the Applicant’s victimisation allegations.

Discrimination on the ground of presumed disability (order (t) in para 112 above)

116 We understand the Applicant to be alleging inter alia that by arranging to have security guards present when he met with Ms B (after he had been to see Dr Leon, a psychiatrist), Ms B presumed that he had a disability, viz, paranoid schizophrenia. (The Applicant denies that he has ever had any such disability.) In so doing, the Applicant alleges that Ms B was acting in breach of s 49L(2) and / or s 49M(1) of the Act.

117 Mr Grime submits that there is no evidentiary basis for the Applicant’s assertions. He also submits that these assertions do not form part of the complaint lodged with the Board and, therefore, that the Tribunal has no power to join Ms B to respond to the allegations. Mr Grime further submits that if the Applicant wishes to pursue these allegations, it will be necessary for him to lodge a further complaint with the Board (notwithstanding the lapse of time).

118 At present, and in the absence of any application to dismiss the allegations under s 111(1) of the Act, we do not consider it to be necessary to determine the issues raised by Mr Grime’s submissions in para 117 above. This is because we are satisfied that Ms B’s alleged conduct arose in her capacity as the Director of EEO and, therefore, that it is appropriate for the Respondent University to accept legal responsibility for any acts of unlawful discrimination established against her (see para 64 above).

119 Accordingly, we decline to join Ms B to the proceedings for the purpose of responding to the Applicant’s allegations of presumed disability discrimination.

Imputed Homosexual Discrimination (order (w) in para 112 above)

120 As we currently understand the Applicant’s case, he alleges inter alia that by failing to act on his complaints, Ms B aided and abetted the discriminatory conduct of Dr D, Professor G and Professor E. Having carefully examined all the relevant material and submissions, we are satisfied that Ms B’s alleged conduct arose in her capacity as the Director of EEO and that it is appropriate for the Respondent University to accept legal responsibility for any unlawful acts established against her (see para 64 above).

121 Accordingly, we decline to join Ms B to the proceedings for the purpose of responding to the Applicant’s allegations of imputed homosexual discrimination.

Imputed Homosexual Vilification (orders (x) in para 112 above)

122 Based on the material presently before us, it is difficult to see how Ms B’s alleged conduct (as set out in the Points of Claim) is capable of contravening s 49ZT(1) of the Act. Accordingly, in the absence of further material, we do not consider it is appropriate to join Ms B to the proceedings for the purpose of responding to the claim that Ms B aided and abetted Dr D’s and Ms C’s alleged vilification of the Applicant.

Victimisation (orders (s), (u) and (v) in para 112 above)

123 The majority of the particulars in the Points of Claim and the written joinder application relate to the Applicant’s numerous victimisation allegations against Ms B. Mr Grime submits that all of Ms B’s dealings with the Applicant were in her official capacity as the Director of EEO, that her actions were clearly part of whatever systemic response there was by the Respondent to the various claims made by the Applicant, and therefore, that the Respondent is the appropriate party to be held accountable for those matters.

124 A close examination of all the relevant material suggests that, if substantiated, some of the Applicant’s allegations could amount to a detriment within the meaning of s 50(1) of the Act. It is alleged inter alia that Ms B:

· Released the Applicant’s private email correspondence to Dr Leon without the Applicant’s permission.

· Threatened to disclose the Applicant’s psychiatric evaluation of “paranoid schizophrenic with delusions of grandeur” publicly.

· Threatened to “destroy” the Applicant’s career, reputation, marriage, family and means of income if he continued with his discrimination complaints.

· Accused the Applicant of sexually abusing his own son and told the Applicant that if he pursued his complaints, Dr D would make a counter claim of sexual harassment.

· Stated that if the Applicant’s complaints reached this Tribunal, the above accusations would be made public.

· Offered the Applicant psychiatric treatment on the condition that he discontinued his complaints.

· “Forced” him to discontinue his discrimination complaints with the Board citing mental problems as the reason.

125 Mr Grime submits that Ms B did not subject the Applicant to any form of detriment within the meaning of s 50(1), and submits that there is no evidentiary basis provided for any of the allegations. Taking the Applicant’s case at its highest, we are unable to conclude that the victimisation allegations are not capable of contravening the Act.

126 The Respondent has indicated that it is willing to accept legal responsibility for all the alleged acts of victimisation against Ms B and that it does not intend to rely on a defence under s 53(1) of the Act that it did not authorise the particular conduct. The question arises as to whether it is appropriate for the Respondent to accept legal liability for Ms B’s alleged conduct. Taking into account the wide ranging nature of the allegations, it is not difficult to see a potential conflict of interests arising. The Tribunal may well find that notwithstanding the Respondent’s stated position, the Respondent did not authorise some or all of the conduct in question and pursuant to s 50(1), find Ms B to be personally liable as “the discriminator”.

127 In these circumstances, we consider that a failure to join Ms B to the proceedings could well prejudice the Applicant’s legal interests. Accordingly, we are of the view that we ought to join Ms B as a respondent to the victimisation allegations against her.

Professor J: Proposed Seventh Respondent

128 The Applicant seeks the following orders:

(y) That J, as an employee of the University of A, in association with E discriminated against the Complainant in providing a false references for employment on the ground of the Complainant’s imputed homosexuality.

(z) That J, as an employee of the University of A, aided and abetted the discrimination of the Complainant by E in giving false reference to prevent the Complainant from gaining employment on the ground of the Complainant’s imputed homosexuality.

129 As we currently understand the Applicant’s case, he is alleging that Professor J gave both a false and a negative reference to Associate Professor Lodewijks in relation to the Applicant’s suitability for employment as a tutor at the University of New South Wales (in breach of s 49ZP and / or s 49ZO(2) of the Act). Details of the alleged discrimination are set out in paragraphs CN 1) – CN 22) of the Points of Claim and particulars 1) – 18) of the Applicant’s written application to join Professor J to the proceedings.

130 Mr Grime submits that at the time Professor J gave the reference in question, he was acting in his capacity as an employee of the Respondent and, therefore, that there is no cogent reason for joining Professor J as a respondent.

131 Having carefully examined all the relevant material and submissions, we are satisfied that Professor J’s alleged conduct arose in his capacity as an employee of the Respondent University. In these circumstances, we consider it to be appropriate for the Respondent to accept legal responsibility for any acts of unlawful discrimination established against him.

132 In the present circumstances, we do not consider that the legal interests of either the Applicant or the Respondent will be prejudiced by a failure to join Professor J. Accordingly, we decline to join him to the proceedings.

Professor H: Proposed Eighth Respondent

133 The Applicant seeks the following orders:

(aa) That H, as an employee of the University of A, victimised the Complainant when the Complainant made complaints about staff and officers of the University of A who had discriminated against him on the ground of the Complainant’s imputed homosexuality, victimised and vilified the Complainant.

(ab) That H, as an employee of the University of A, aided and abetted the discrimination [victimisation] of the Complainant by B by authorising Ms B’s psychiatric determinations of the Complainant.

(ac) That H, as an employee of the University of A, aided and abetted the victimisation of the Complainant by B. H knowingly supported the false accusations that the Complainant sexually harassed persons and the totally false allegations that the Complainant was sexual abusing a child.

(ad) Alternative to (ac), that H, as an employee of the University of A, aided and abetted the victimisation of the Complainant by B. H ordered Ms B to accuse the Complainant of the false accusations that the Complainant sexually harassed persons and the totally false allegations that the Complainant was sexually abusing a child.

134 Professor H is the Vice-Chancellor of the Respondent University. Details of the various alleged acts of victimisation are set out in particulars GS 1) – GS 21) of the Points of Claim and particulars 1) – 15) of the Applicant’s written application to join Professor H to the proceedings.

135 Mr Grime submits that the Applicant has not been able to provide any cogent reason for joining Professor H in his personal capacity. He further submits that Professor H’s association with the Applicant arose, at all times, in his capacity as Vice-Chancellor and that his responses to the Applicant’s complaints are best described as “reasonable management responses”. (See, for example, Professor H’s letter of 8 October 1998.)

136 Having carefully examined all the relevant material and the submissions for and against joinder, we are satisfied that Professor H’s alleged conduct arose in his capacity as Vice-Chancellor of the Respondent University and, therefore, that it is appropriate for the Respondent to accept legal responsibility for any acts of victimisation established against him.

137 Accordingly, we decline to join Professor H to the proceedings for the purpose of responding to the Applicant’s victimisation allegations.

Professor I: Proposed Eleventh Respondent

138 The Applicant seeks the following order:

6) As a result of the proposed Eleventh Respondent’s actions, the Complainant has been unlawfully subjected to detriment through victimisation within the meaning of section 50 of the Act because he had made a complaint.

139 Details of the allegations against Professor I are set out in particulars 1) – 7) of the Applicant’s written application to join Professor I to the proceedings. As we understand the Applicant’s case, he alleges that Professor I (who, at the relevant time, was the Respondent’s Pro Vice-Chancellor (Academic)), victimised him by ignoring the complaint that had been sent to Professor G on 15 September 1997 (see para 107 above). He further alleges that Professor I failed to forward his complaint to the Dean of Students, Josephine E, because she was related to Professor E, about whom the Applicant was complaining.

140 Mr Grime submits that the alleged failure to deal with the Applicant’s complaint is to be seen as a systemic failure and, in that sense, there can be no cogent reason for joining Professor I in her personal capacity.

141 Taking into account all relevant considerations for and against joinder and in the absence of further material, we are satisfied that Professor I’s alleged failure to act on the Applicant’s complaint arose in her capacity as Pro Vic-Chancellor (Academic) of the Respondent University and, therefore, that it is appropriate for the Respondent to accept legal responsibility for any acts of victimisation established against her.

142 Accordingly, we decline to join Professor I to the proceedings for the purpose of responding to the Applicant’s victimisation allegations.

Orders

143 The following persons not be joined as respondents to the proceedings:

· Professor E

· C

· Professor G

· Professor J

· Professor H

· Professor I.

144 Dr D be joined as a respondent to the proceedings but only in response to the Applicant’s claims of:

· imputed homosexual discrimination

· victimisation

· imputed homosexual vilification.

145 That B be joined as a respondent to the proceedings but only in response to the Applicant’s claims of victimisation.

Decision revised 14/10/02 - decision anonomysed